|FROM ||Ruben Safir
|SUBJECT ||Re: [Hangout-NYLXS] All-Writ, the FBI and contempt of court
|From hangout-bounces-at-nylxs.com Wed Sep 7 00:12:19 2016
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From: Ruben Safir
Date: Wed, 7 Sep 2016 00:12:08 -0400
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Subject: Re: [Hangout-NYLXS] All-Writ, the FBI and contempt of court
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On 09/06/2016 11:07 PM, Rick Moen wrote:
> Quoting Ruben Safir (mrbrklyn-at-panix.com):
>> On 09/06/2016 09:02 PM, Ruben Safir wrote:
>>> has anyone followed the imprisonment and months long interment in
>>> Solitary Confinement of Francis Rawls, of Philadelphia? He is accused
>>> of watching child pornography and they are holding him in contempt of
>>> court because his systems are locked with cryptography.
> Are you forwarding mail from your evil twin Ruben Safir?
> You did not bother to provide the news article, just the full text of an
> advocacy blog post. The interesting legal question is: What evidence
> did prosecutors provide to the judge to support application of the =
> 'foregone conclusion' doctrine's exception to the Fifth Amendment?
> Without understanding the legal issue, your covering this matter is
> pretty fruitless. If you agitate about legal issues without bothering
> to understand the law, you are just making noise.
> NY Times article says on that point, 'Parts of the court documents that
> would explain the reasons for Mr. Rawls=E2=80=99s detention and the court=
> are still under seal.' So, we presently do not know.
> The doctrine was developed by the USSC in 1976 in the case Fisher v.
> United States, 425 U.S. 391, 411 and reaffirmed in United States v.
> Hubbell, 530 U.S. 27 (2000). The Fifth Amendment privilege against
> 'self-incrimination' has always been ruled to extend only to
> 'incriminating communitcations... that are testimonial in nature' (US v.
> Fisher was an IRS case in which defendant Fisher refused to produce
> documents sought by IRS, citing Fifth Amendment privilege. The USSC
> disagreed, ruling that "the act of producing [the papers]=E2=80=94the onl=
> which the taxpayer is compelled to dowould not itself involve
> testimonial self-incrimination." The Court held that the government
> can compel production when the "existence and location [of documents]
> are a foregone conclusion and [the defendant] adds little or nothing to
> the sum total of the Government=E2=80=99s information by conceding that h=
> fact has the papers." Thus, the act of producing papers wasn't
> testimonial; it was not functionally equivalent to admitting-guilt words
> from Fisher's mouth. =
> By contrast, the USSC disagreed with prosecution in the Hubbell case,
> where a grand jury had subpoenaed documents from an official who refused
> to comply. Here, the Court found that the prosecution had _lacked_ =
> a priori knowledge of the subpoenaed documents, and thus compelling the
> papers would have constituted a testimonial act.
> Lower courts have tended to follow dicta in the Hubbell case and
> requiring the state seeking compulsion under the 'foregone conclusion'
> doctrine to be able to show the court independent, convincing evidence =
> of the 'existence, custody, and authenticity' of the material sought --
> all three of those elements, not just police handwavium. =
> Moveover, because of subsequent cases, in three District Courts (DC
> Circuit, Ninth Circuit, Eleventh Circuit), prosecution must also have
> existing knowledge of the subpoenaed documents with "reasonable
> particularity" before "the communication inherent in the act of
> production can be considered a foregone conclusion." (Philadelphia's
> served by the Third Circuit.)
> _So_, the implication in the Rawls case is that the judge has seen other
> evidence (so far under seal) that already convinced him/her past a
> reasonable doubt that the hard drives' contents are child pornography, =
> which is why he ruled that decrypting them isn't a testimonial act, and
> refusing his order to do so is contempt of court. Rawls's public
> defender's job was to convince the judge that whatever-that-was _didn't_
> establish the 'existence, custody, and authenticity' of kiddie porn on
> Rawls's hard drives -- but on the evidence he didn't succeed. =
> Now, you can dislike the court's holding if you like, but at least you
> understand it better.
> And, next time, don't try to understand legal issues by reading advocacy
> blog postings.
> hangout mailing list
Thank You for explaining why the court is using an unjust doctrine to
imprison someone in isolation for over 7 months without his being
convicted of a crime. This, BTW, came originally from an article that I
clipped with scissors from the NY Times on May 1st 2016 page 20. I just
got to it now. I don't care what evidence the Judge has (sealed BTW).
I only care that he is torturing a man in order to have him fork over
his decryption codes. The justification is irrelevant to me, although
others might find it of interest.
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www2.mrbrklyn.com/resources - Unpublished Archive
http://www.coinhangout.com - coins!
Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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